December 31, 2013

9th Cir: City Cannot Take Property Outside City Limits

If you were to try to predict the result in an appeal before the Ninth Circuit where the lead plaintiff is the "Alliance for Property Rights and Fiscal Responsibility," the defendant is a municipality, and knowing nothing else, you'd probably have guessed wrong in this case.

The panel (N.R. Smith, Schroeder, Thomas), held that the city lacked the power to take easements for power lines when state law did not delegate it the authority to act extraterritorially. The court started with the black-letter rule that munciipalities are creatures of state law, and cannot exercise powers not delegated to them by the state. Relying on Idaho law, the court concluded that the state had not given the city the express power, the implied power, or the "necessary and proper" power (for lack of a better term), to condemn property outside of city limits:

As a "creature of the state," the City has only those powers "either expressly or impliedly granted to it." Caesar, 610 P.2d at 519. Because the power to exercise eminent domain extraterritorially for the purpose of constructing electric transmission lines (1) has not been expressly granted to the City by the state, (2) cannot be fairly implied from the powers that the City has been given by the state, and (3) is not essential to accomplishing the City’s objects and purposes, the City does not have that power.

Slip op. at 20.

Read the opinion. It's a good primer on the power of muncipalities in general, and on the limited nature of the powers of cities to take property. You often hear about cities having "police powers" or "sovereignty," but this case is a good reminder that they are "creatures of the state" (as the opinion correctly notes), and have only those powers which the states grant.

One last note. The panel also rejected this little piece of munciipal chutzpah: the city argued on appeal that the issue of extraterritorial jurisdiction should be certified to the Idaho Supreme Court because there was no definitive case from that court. Normally, that might have been an appealing punt to the Ninth Circuit (and, if the panel were comprised differently, then perhaps it might have gained traction). But here, the city had removed the case to federal court (the Alliance originally filed in state court), and the district court had given the city to chance to seek certification, which the city declined. The Ninth Circuit held that the city had "cast its lot" in federal court, and must now live with the consequences.

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